Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, as amended, and opposition amendments (40) and (41) on sheet 8144, moved by Senator Cameron. The question is that the amendments be agreed to.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Yesterday, during the committee stage, there was an agreement between the opposition and Senator Xenophon that we would have some discussions on certain aspects of the bill. For obvious reasons, we haven't been in a position to get together with Senator Xenophon to deal with that, so I would, with the concurrence with the minister, be happy to have either Senator Leyonhjelm or the minister move to their amendments so that we can have time to discuss the issues.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The government agrees with the proposition that's been put forward by Senator Cameron. On that basis, given that the government's amendments are technical amendments, I seek leave to move amendments (1) to (5) on sheet JH138 together.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

We might just do it by leave. Could someone just, by leave, withdraw the question that's before the chair at the moment.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I seek leave to withdraw the question before the chair.

Leave granted.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (5) on sheet JH138 together:

(1) Schedule 1, page 5 (after line 6), after item 12, insert:

12A At the end of subsection 550(1)

  Add:

Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2) Schedule 1, item 13, page 6 (lines 2 to 9), omit subsection 557A(1), substitute:

(1) A contravention of a civil remedy provision by a person is a serious contravention if:

  (a) the person knowingly contravened the provision; and

  (b) the person's conduct constituting the contravention was part of a systematic pattern of conduct relating to one or more other persons.

Note: For the liability of bodies corporate for serious contraventions, see section 557B.

Example:   Generally, subsection 323(1) requires an employer to pay an employee the full amount payable to the employee in relation to the performance of work.

  A contravention of subsection 323(1) is a serious contravention if the employer knowingly does not pay the employee in full (even if the employer does not know the exact amount of the underpayment) and that contravention is part of a systematic pattern of conduct by the employer. The systematic pattern of conduct of the employer may relate to more than one employee and may consist of different contraventions.

Systematic pattern of conduct

(3) Schedule 1, item 13, page 6 (after line 18), after paragraph 557A(2)(c), insert:

  (ca) the person's response, or failure to respond, to any complaints made about the relevant contraventions; and

(4) Schedule 1, item 13, page 6 (after line 36), after subsection 557A(5), insert:

Involvement in a serious contravention

  (5A) A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

  (a) the principal's contravention was a serious contravention; and

  (b) the involved person knew that the principal's contravention was a serious contravention.

Application for a serious contravention order and alternative orders

(5) Schedule 1, item 13, page 7 (lines 14 to 17), omit subsection 557B(1), substitute:

(1) For the purposes of subsection 557A(1), a body corporate knowingly contravenes a civil remedy provision if the body corporate expressly, tacitly or impliedly authorised the contravention.

These amendments are clarifying amendments. Item (4) amends section 557A to clarify that an accessory may be liable for a higher penalty under the serious contraventions regime if they are involved in a serious contravention by the principal wrongdoer and knew that the principal's contravention was a serious contravention. The amendment flows from the Senate committee report in relation to this bill and basically clarifies when an accessory may be subject to the proposed higher penalties for serious contraventions. It clarifies that anyone who knowingly involves themselves in the deliberate and systematic underpayment of workers will face the higher penalties that apply to that conduct. This approach is consistent with the current approach to accessorial liability under section 550 of the Fair Work Act, under which an alleged accessory must have knowledge of the essential elements of the contravention to be liable for that contravention.

On the second amendment: I propose to amend section 557A(1) of the bill to clarify the existing intention that a contravention is deliberate in the context of the serious contraventions regime if the person knowingly contravened the provision. Again, this amendment responds to the Senate committee report and clarifies what a wrongdoer needs to know before they can be held responsible for a serious contravention. The amendment uses language and concepts already used elsewhere under the Fair Work Act and so should be easier to understand and apply. It also means that, for the higher penalties under the serious contraventions regime to apply, the wrongdoer must knowingly contravene the provision and it must form part of a systematic pattern of conduct.

On the final amendment that I have moved: I propose to amend section 557A(2) of the bill to add an additional matter to the non-exhaustive list of matters that a court may consider when determining whether a person's conduct was part of a systematic pattern of conduct. Again, the purpose of the amendment is to respond to the Senate committee report and it sets out additional guidance about when a contravention may qualify as serious. This amendment improves the operation of the bill by ensuring that employers who do the right thing by quickly and decisively responding to complaints about underpayments that are brought to their attention are not subjected to higher penalties. On the other hand, it will be relevant to the court's consideration if employers repeatedly fail to respond to wage complaints without a reasonable excuse. Again, these amendments are technical amendments that respond to the Senate committee's report, and I commend them to the Senate.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I understand there is a supplementary explanatory memorandum—

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

There is. I would seek leave to table the supplementary explanatory memorandum.

The TEMPORARY CHAIR: You don't need leave. That is now tabled. Thank you, Minister.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

We understand that the intention of this provision is to clarify what constitutes accessorial liability for serious contraventions. It arises from concerns raised with the Senate employment committee by Professor Andrew Stewart in his submission. Can the minister clarify proposed section 557A(5A)(b)? The statement is that the involved person knew that the principal's contravention was a serious contravention and it requires the involved person to know. Is it that the principal's conduct was part of a systemic pattern of conduct involving one or more persons, or is it something more than that?

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

It being nearly two o'clock, the committee will now report progress.

Progress reported.